Badar Durrez Ahmed, J.

The learned counsel for the petitioner, while arguing the application for regular bail under Section 439, submitted that the two allegations made against the petitioner are that offences have been committed under Sections 132 and 135 (1) (a) of the Customs Act, 1962. He submits straightway that Section 132 is a bailable offence and it is only on account of the allegation that an offence under Section 135 (1) (a) has been committed that he is before this Court. He further pointed out that by a subsequent amendment which came into effect in 2004, sub-section 3 has been added to Section 137 whereby it is now provided that:-

‘‘any offence under this chapter may, either before or after the institution of the prosecution, be compounded by the Chief Commissioner of Customs on payment, by the person accused of the offence to the Central Government, of such compounding amount as may be specified by rules”.

2. Thus, according to him, even if an offence under Section 135 (1) (a) is made out, it would still be compoundable under Section 137 (3) of the said Act and, therefore, no useful purpose would be served by keeping the petitioner in custody, specially when bail is rule and the jail is the exception. He further submitted that on going through the complaint itself, no offence under Section 135 (1) (a) would be made out.

3. The learned counsel appearing for the Customs Department submitted that this was a clear case in which the ingredients of Section 135 (1) (a) were made out and keeping in mind the seriousness of the offence and the allegations, bail should not be granted. He drew my attention to the complaint and several paragraphs therein, particularly, he drew my attention to paragraph 3 (cc) and 3 (cc) (iii) and (iv) which read as under:-

‘‘(3 (cc) From the perusal of various Bank statements of both these firms and statements dated 29.07.2004 of the accused and Rajesh Agarwal dated 29.07.2004 and various statements of the Bank recorded on 30.07.2004, the following facts came to surface:-

i) xxxx xxxx xxxx xxxx

ii) xxxx xxxx xxxx xxxx

iii) Total export made so far by M/s G&S International were to the tune of Rs.98 crores and DEPB benefit availed was approximately Rs.9.5 crores and drawback benefit availed was Rs.0.78 crore. Total exports made by M/s AS Raj International so far were to the tune of Rs.7.38 crore. Total drawback benefit availed was Rs.0.70 crore and DEPB benefit availed was Rs.0.14 crore. All these clearances had taken place from Air Cargo Complex.

iv) There were no export order in black and white. As per the statements dated 29.07.2004 of the accused and Rajesh Agarwal, all exports were as verbal orders placed by the tourist buyers during their visit to India at their office, who also as per their statements paid foreign currency in advance and in person to them alongwith currency declaration certificates which they deposited in their remittance Bank. Photocopies of the sample currency declaration forms were also obtained from the Bank and on verification with official records found to be fictitious.”

4. On a pointed question being posed to the learned counsel for the Customs as to whether there is any whisper of any misdeclaration of value in the complaint, he was unable to show any such clear allegation in the complaint.

5. Looking at the totality of the circumstances and also the fact that now, in any event, offence under Section 135 (1) (a) has been made compoundable, I see no reason as to why bail should not be granted to the present petitioner. Accordingly, the petitioner be released on bail on his furnishing a personal bond in the sum of Rs.1 lakh with two sureties of the like amount, subject to the satisfaction of the ACMM, New Delhi with the further condition that the petitioner shall not leave the country without the prior permission of the concerned Court. The application for bail stands disposed of.

Dasti.